United States District Court, D. South Carolina, Charleston Division
August 15, 2014
THOMAS F. TRUE, Plaintiff,
MARTIN SEPPALA; NANCY SEPPALA; and JOSHUA SEPPALA, Defendants.
REPORT AND RECOMMENDATION
WALLACE W. DIXON, Magistrate Judge.
This breach of contract action based upon diversity of citizenship under 42 U.S.C. § 1442 by a federal prisoner, Thomas F. True, proceeding pro se is before the undersigned United States Magistrate Judge for a Report and Recommendation on the Defendants' Martin Seppala and Nancy Seppala Motion to Dismiss Plaintiff's Complaint under FED.R.CIV.P. 4(m) (Dkt.26) for failure to serve any Defendant within 120 days from the date the Summons was issued. 28 U.S.C.§ 636(b).
A review of the record and relevant case law indicates that the motion should be denied. While it is true that the Summons in this matter was issued on October 22, 2013, and a defective service on these moving Defendants was not accomplished until April 3, 2014, the Defendants motion was filed on April 18, 2014, after the Plaintiff's motion to strike his defective service and for an extension of time to properly serve the Defendants was granted for good cause shown by then United States Magistrate Judge Bruce Howe Hendricks. (Dkt. 22). The Plaintiff was given until May 19, 2014, to serve the Defendants. The motion to dismiss should be denied as Plaintiff had sought and received leave for good cause shown to serve the Defendants after the limitations period. Defendants Martin Seppala and Nancy Seppala were served and have answered the Complaint and their Local Rule 26.01 and 26.03 Interrogatories.
Accordingly, for the aforementioned reasons, it is recommended that the Motion to Dismiss (Dkt. 26) be denied.
IT IS SO RECOMMENDED.